Citation Nr: 1340044 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-23 512 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent disabling for residuals of left great toe fracture, with toenail removal. 2. Entitlement to a total disability rating for compensation purposes based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD K. Marenna, Associate Counsel INTRODUCTION The appellant served on active duty from July 1956 to May 1958. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. This case was previously before the Board in August 2012 and remanded for additional development. In the August 2012 remand, the Board found that the issue of entitlement to a TDIU had been raised by the record. For the reasons discussed below, the Board finds that the RO substantially complied with the mandates of the August 2012 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDINGS OF FACT 1. Throughout the rating period on appeal, the residuals of a left great toe fracture with toenail removal have been manifested by pain. 2. The appellant does not have one disability ratable at 60 percent or more, nor does he have at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 3. The appellant's service-connected left toe disability fails to meet the minimum percentage requirements on a schedular basis for a total disability rating based on individual unemployability due to a service-connected disability and the preponderance of the evidence demonstrates he is not unemployable only by reason of his service-connected disability. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for service-connected residuals of a left great toe fracture with toenail removal have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.68, 4.71a, Diagnostic Code 5284 (2013). 2. The criteria for entitlement to TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.341(a), 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the appellant's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Notice and Assistance VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). More specific notice is required in claims for increased compensation. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has met all statutory and regulatory notice and duty to assist provisions as to the appellant's increased rating claims. Prior to initial adjudication of the claim, appropriate notice in regard to the appellant's increased rating claim was provided in a March 2008 letter. Mayfield, 444 F.3d at 1333; See Prickett v. Nicholson, 20 Vet. App. 370 (2006). Appropriate notice regarding the appellant's claim for entitlement to a TDIU was provided in October 2012. VA's duty to assist has been satisfied. The appellant's service treatment records and VA medical records are in the file. Private medical records identified by the appellant have been obtained, to the extent possible. As requested in the August 2012 remand, the AOJ attempted to obtain the appellant's Social Security Administration records. However, a February 2013 Social Security Administration response reflects that the medical records were not available as they had been destroyed. See Stegall v. West, 11 Vet. App. 268 (1998). The appellant has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the appellant's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran appropriate VA examinations in July 2008 and March 2013. The examinations are adequate because they are based on thorough examinations, a description of the Veteran's pertinent medical history and appropriate diagnostic tests. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The March 2013 VA examination report was completed in compliance with the March 2013 remand. See Stegall v. West, 11 Vet. App. 268 (1998) The appellant has not reported receiving any recent treatment specifically for this condition and there are no records suggesting an increase in disability has occurred as compared to the prior VA examination findings. There is no objective evidence indicating that there has been a material change in the severity of the appellant's service-connected disorder since he was last examined. 38 C.F.R. § 3.327(a). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The VA examination reports are thorough and provided findings pertinent to the rating criteria. The examinations in this case are adequate upon which to base a decision. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). II. Legal Criteria and Analysis The appellant asserts that he is entitled to a rating in excess of 10 percent for his service-connected left great toe fracture with toenail removal and entitlement to a TDIU. For the reasons that follow, the Board finds that a higher rating and entitlement to a TDIU are not warranted. Left Great Toe Fracture Disability evaluations are determined by comparing a veteran's present symptomatology with the criteria set forth in the Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. 4.1 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the appellant. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, where, as here, the appellant is appealing the rating for an already established service-connected condition, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. The appellant's claim for an increased rating was received on March 3, 2008. As such, the rating period on appeal is from March 3, 2007. 38 C.F.R. § 3.400(o)(2) (2013). The appellant's service-connected residuals of a left great toe fracture with toenail removal are currently evaluated under Diagnostic Code 5284. Under Diagnostic Code 5284, other foot injuries that are moderate warrant a 10 percent rating. Moderately severe foot injuries warrant a 20 percent rating. Severe foot injuries warrant a 30 percent rating. A note provides that with actual loss of use of the foot, a 40 percent rating is warranted. August 2007 and October 2007 VA treatment records noted that the appellant had no history of falling. An August 2007 VA podiatry note indicated the appellant complained of painful bilateral feet for one week. He had incurvated thickened nails 1 to 5 bilaterally. The assessment was onychocryptosis and onychomycosis. The July 2008 VA examination report reflects that the appellant reported constant pain in the left great toe at about 5 out of 10 with 10 being the worst kind of pain. He reported that he cannot walk very long. The report notes that the left foot pain occurred while standing, walking and at rest at the proximal interphalangeal (PIP) joint and metacarpophalangeal (MP) joint. The appellant also reported having swelling of the entire foot and stiffness of the PIP joint and MP joint. He did not report fatigability, weakness or lack of endurance. On examination, there was facial grimacing and guarding with extension and flexion of the interphalangeal joint of the great toe. There was 2+ edema from both knees distally. There was guarding with palpation of the interphalagenal joint of the great toe. There was no objective evidence of instability, weakness, abnormal weight bearing , hammertoes, or hallux valgus or rigidus. The VA examiner noted that it was difficult to palpate the appellant's pulses because of the edema, but there was good capillary refill. There was no evidence of malunion or nonunion of the tarsal or metatarsal bones. There was no muscle atrophy of the foot. A July 2008 X-ray report reflects that there were no fracture sequelae evident in the first digit. There was degenerative joint disease of the interphalangeal (IP) joints and first metatarsophalngeal joint, and minor calcaneal spurring. There was soft tissue swelling of the distal dorsum and multiple flex/ext deformities of digits two throughout five, likely clawtoe. The VA examiner noted that the appellant's toe disability affected his activities of daily living. It had a moderate effect on feeding, bathing and grooming, and a severe effect on chores, shopping, traveling, dressing and driving. He also reported that the disability prevented exercise, sports, and recreation. In a May 2010 substantive appeal, the appellant stated that he could not walk without limping and could not stand on his feet very long. He stated that his symptoms were severe. A January 2011 VA treatment record reflects that the appellant's left great toe had an ingrown toenail. The March 2013 VA examination report reflects that the appellant reported having daily toe pain. He did not have Morton's neuroma, metarsalgia, hammertoes, hallux valgus, hallux rigidus, claw foot (pes cavus), malunion or nonunion of the tarsal or metatarsal bones, other foot injuries. The appellant regularly used an electric scooter, but it was not used for the left great toe condition. It was used for COPD bilateral peripheral neuropathy, congestive heart failure (CHF) post aortic valve replacement on chronic Coumadin therapy, postcerebrovascular accident (CVA) with left sided weakness. Imaging studies of the foot were performed and there were no abnormal findings. A March 2013 X-ray report of the left foot reflects that the X-ray was negative. No bony or joint abnormality was seen. The VA examiner found that the appellant's foot condition did not impact his ability to work. The March 2013 VA examiner found that the appellant's residuals of the left great toe fracture and toenail removal were moderate. The appellant had an intact toenail. The VA examiner stated that the appellant did not have traumatic residuals due to a simple fracture. The VA examiner also noted that the left foot X-ray was normal. An April 2013 VA treatment record reflects that the appellant complained that the first and fifth digits of the left foot were painful. On examination, there was sign of infection and range of motion was within normal limits. Based on the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the service-connected residuals of left great toe fracture, with toenail removal. The Board finds that the appellant's left toe symptoms are moderate, and are thus consistent with a rating of 10 percent under Diagnostic Code 5284. The appellant complained of pain in his left great toe throughout the period on appeal, which is consistent with moderate symptoms. The appellant's VA treatment records reflect that he had no history of falling due to his toe disability. Although the March 2013 VA examiner noted that the appellant used an electric scooter, it was not used to the left great toe condition. The March 2013 VA examiner specifically found that the appellant's residuals of a left great toe fracture and toenail removal were moderate. The April 2013 VA treatment record noted that the appellant's left foot range of motion was normal. Even with consideration of DeLuca, the Board finds that the appellant's left toe disability is consistent with moderate symptoms. The appellant has pain in the left toe, but the July 2008 VA examination report indicates he did not report fatigability, weakness, or lack of endurance. There was no objective evidence of instability, weakness, abnormal weight bearing, or muscle atrophy. The July 2008 VA examination report indicated the appellant's toe disability affected his activities of daily living, including having a severe effect on chores, shopping, dressing and driving. However, the Board finds the functional impact is moderate. The March 2013 VA examination report noted that the appellant used an electric scooter for his nonservice-connected disabilities and that the foot condition did not impact his ability to work. The Board finds that even with consideration of functional impact, the appellant's left toe symptoms are no more than moderate. The Board finds that the appellant is not entitled to a higher rating under another Diagnostic Code. The evidence does not reflect the appellant has claw foot, metarsalgia, hallux valgus, hallux rigidus, hammer toe, or malunion or nonunion of the tarsal or metatarsal bones. Thus, Diagnostic Codes 5277 through 5283 are not applicable. The evidence also does not indicate the appellant has a foot muscle injury. The July 2008 VA examiner noted that the appellant had degenerative disease of the left great toe. The Board notes that the March 2013 VA examination report reflects that a left foot X-ray was normal. Moreover, the Board finds that the appellant is not entitled to a higher rating under the rating criteria for arthritis. Under Diagnostic Code 5003, arthritis is rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. A rating of 10 percent is for application for each group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The appellant's disability is already rated as 10 percent disabling. As discussed above, the Board finds that the appellant's toe symptoms, including on flexion, are not more than moderate, which is consistent with a 10 percent rating for a foot disability. Finally, the appellant's VA treatment records reflect that he had thickened toenails due to onychocryptosis and oncychomycosis on his toenails, but there is no evidence that the toenail symptoms are related to his service-connected left toe disability. Consequently, the Board finds that the appellant is not entitled to a higher or separate rating under another Diagnostic Code. The Board has considered whether extraschedular consideration is warranted based on the evidence of functional, including occupational, impairment secondary to the left toe disability. See Barringer v. Peake, 22 Vet. App. 242 (2008). The discussion above reflects that the symptoms of the appellant's left toe disability are contemplated by the applicable rating criteria. The competent medical evidence of record shows that the left toe disability is primarily manifested by pain. The Diagnostic Code used to rate the appellant's disability provides for a rating based on pain, and the effects of pain and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. The effects of the appellant's disability have been fully considered and are contemplated in the rating schedule. Consideration of whether the appellant's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU In the August 2012 remand, the Board found that the appellant has raised the issue of entitlement to a TDIU due to his service-connected residuals of a left great toe fracture with toenail removal. Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2013). If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341 (2013). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15 (2013). If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the appellant is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a) (2013). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. It is provided further that the existence or degree of non-service connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the appellant unemployable. In the present case, service connection is established for residuals of a left great toe fracture with toenail removal, rated as 10 percent disabling. He has no other service-connected disabilities. Thus, his total disability rating is 10 percent. The appellant does not meet the schedular criteria for an award of TDIU pursuant to the provisions of 38 C.F.R. § 4.16(a). However, under subpart (b), a veteran can still be awarded TDIU if it is established by the evidence of record that service-connected disabilities have rendered him unable to secure and follow substantially gainful employment. If this is established, the case is to be sent to the Director of Compensation & Pension Services for extraschedular consideration. 38 C.F.R. §§ 3.340(a), 3.341(a) and 4.16(b) (2013). The appellant has contended that he is unable to work because of his left great toe fracture. He reported that he cannot walk without limping and he cannot stand on his feet very long. See May 2010 substantive appeal. The July 2008 VA examination report indicates that the appellant reported that he was last employed for about one month at a stadium as a custodian. The VA examination report reflects that ". . . he states he can't keep jobs not only because of the pain in his foot, but also because he has other serious health problems including congestive heart failure. He has just acquired Social Security Disability because of his heart condition and because he has had a stroke." The March 2013 VA examiner found that the appellant was not unemployable due to the residuals of his left great toe fracture and toenail removal. The VA examiner noted that the left foot X-ray was normal. The examiner opined that the appellant is unemployable because of post mechanic aortic valve replacement on chronic Coumadin therapy and low ejection fraction 45-50%, global hypokinesis of the left ventricle, left ventricle mildly dilated, organic brain syndrome, post CVA with left spastic hemiparesis and severe COPD. The examiner stated that each one of these non-service-connected conditions makes him unemployable for light or heavy duty. The examiner noted that occupational experience, education, and training were considered. Age was not a consideration. The Board finds this opinion to be probative as the examiner provided an explanation for the opinion based on a physical evaluation of the appellant and the evidence of record. The crucial inquiry for the Board is not whether the Veteran is able to pursue his profession of choice, or indeed any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The fact that a veteran is unemployed is not enough. It must be determined that his service-connected disorders without regard to his advancing age make him incapable of performing the acts required by employment. Id. The Board acknowledges that the appellant has a painful left toe. However, the Board finds that his service-connected disability is not so severely disabling as to have rendered him or the average person similarly situated unable to secure or follow substantially gainful employment. The March 2013 VA examiner found that the appellant had moderate residuals of a left great toe fracture and that the appellant did not have traumatic residuals. The examiner noted that a left foot X-ray was normal. The evidence does not demonstrate that the appellant's left toe disability alone precludes him from securing and following some form of substantially gainful employment consistent with his education and work experience. The Board has considered the appellant's assertion that he is unable to work due to his toe disability. As a lay person, the appellant is competent to report symptoms capable of lay observation such as pain in the left toe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds that the appellant is not competent to report whether the appellant is unemployable due to his service-connected disability. Additionally, although VA notified the appellant of what was necessary to demonstrate entitlement to a TDIU in the October 2012 notice letter, the appellant did not provide additional information regarding his employment and education history. Thus, the Board finds the March 2013 VA examiner's opinion regarding the appellant's unemployability to be more probative. In this case, the Board finds that the appellant's service-connected left toe disability alone does not prevent him from working. Therefore, submission to the Director, Compensation and Pension Service for extraschedular consideration is not warranted at this time. As a preponderance of the evidence is against the claim of entitlement to a TDIU; there is no doubt to be resolved and this appeal must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to an evaluation in excess of 10 percent disabling for residuals of left great toe fracture, with toenail removal, is denied. Entitlement to a TDIU is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs